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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, VAIBHAVI D. NANAVATI, JJ.
KINSFOLK INFRA ENGINEERING - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 10321 of 2020
Decided On : 01-12-2021
Constitution of India, 1950 - Article 12, 14, 226 - Writ application - Indian Partnership Act, 1932 - Gujarat Tax on Luxury (Hotels, Lodgings and Houses), Act, 1977 - Section 4A - Indian Contract Act, 1872 - Section 37 - Collector declined to grant license in favour of writ applicant - firm in view of dispute as regards ownership of property - Collector took more than six months to grant license as Collector was not able to resolve controversy as regards name of TCGL not figuring in property card - Writ applicant – firm submits that while issue was pending with Collector for grant of license to run a Restaurant at Visamo, firm had already invested Rs.3 Crore in renovating it - Writ applicant - firm, received a show cause notice from Corporation asking firm to deposit rent of Rs.21 Lakh - Corporation took stance that failure on part of writ applicant - firm in not depositing amount, amounted to breach of conditions of work order - Writ applicant - firm gave its reply pointing out to Corporation that license was issued by District Collector - Firm brought to notice of Corporation that it was not liable to pay any amount of rent - Respondent submits this petition is not maintainable and it is only after contractual period of 5 years got over, possession has been taken over as Petitioner did not fulfill its contractual obligations - He has also urged Court to relegate parties to Arbitral Tribunal as there is an explicit clause of Arbitration governing relationship between parties - Whether Corporation could be said to have acted in an unfair and arbitrary manner - Held, Corporation has admitted that entire place was renovated and repaired by writ applicant at his own costs, and according to writ applicant, cost incurred for renovation is almost to tune of Rs.3 Crore - All this was done after renovation plans were approved by Corporation - Court fails to understand why Corporation has taken an unfair stance before it that writ applicant was not supposed to do anything at VISAMO and run the same in same condition when same was taken over - Writ applicant had a legitimate expectation to be treated fairly in matter of grant of extension in view of clear cut Tender - Doctrine of legitimate expectation has been recognized as constituting a substantive and enforceable right in appropriate cases to import principles of natural justice in favour of a party whose civil rights are likely to be affected if Government departs from and takes decision contrary to legitimate expectation of a party - Court is disappointed because whatever has been argued on behalf of Corporation is contrary to materials on record - Not only the action on part of Corporation in dealing with writ applicant could be termed as unfair and unreasonable, but even stance of Corporation before this Court could be said to be unfair - Corporation being an instrumentality of State in terms of Article 12 of Constitution of India is obliged to act in a fair, nonarbitrary, just, transparent and non-discriminatory manner - Respondent – Corporation is bound by Article 14 of Constitution of India and its action cannot result in any infringement of right to equality, as enshrined in Constitution of India - At cost of repetition, extension may be at discretion of Corporation, but, discretion has to be exercised in a fair, reasonable, non-arbitrary and non-discriminatory manner - It is very easy for Corporation to tell writ applicant to remove all of its movable fixtures like Air Conditioners, etc., and walk out, but, at the same time, Corporation should not forget that place in question, at one point of time, was a VISAMO in its true sense and in a span of two years', writ applicant upgraded VISAMO and brought it to a particular level - All that writ applicant is asking is to permit him to run VISAMO for a further period of two years' - Petition allowed.
JUDGMENT :
J.B.PARDIWALA, J.
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs:
(A) to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order dated 19.08.2020 passed by respondent No.2 and thereby pleased to permit the petitioners to run the ‘VISAMO’ shelter (Hotel White Feather) at Saputara, as per the terms and conditions of the agreement.
(B) to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondent No.2 to consider the date of commencement of agreement from 30.04.2017 instead of 24.04.2015 as permission to commence ‘Visamo’ (Hotel White Feather) was granted by the Collector only on 29.04.2017 and thereby deduct the said period from the total period of contract.
(C) to issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the action of respondents in taking forceful possession of the contractual premises as illegal and in violation of principles of natural justice and thereby be pleased to quash and setaside the officer order dated 25.06.2020 issued by the Manager (Commercial) of Tourism Corporation of Gujarat Limited.
(D) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider to renew the period of agreement for additional period of five years, considering the date of commencement of the initial contract as 30.04.2017.
(E) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider the extension of period of six months, in view of Covid’19 Global Pandemic, as directed by the Government of India vide notification dated 13.05.2020. To issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order dated 19.08.2020 passed by respondent No.2 and thereby pleased to permit the petitioners to run the ‘VISAMO’ shelter (Hotel White Feather) at Saputara, as per the terms and conditions of the agreement.
(F) Alternatively, without prejudice to all' other prayers, to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus directing the respondents to grant one month time to the petitioners to take back all the movable properties which were installed by them at their own costs and expenses and permit the petitioners to restore the property to its original position which was prevalent on the date of agreement.
(G) Pending admission, hearing and/or final disposal of this petition, Your Lordships may be pleased to direct the respondents to grant one month time to the petitioners to take back all the movable properties installed by them at their own costs and expenses and permit the petitioners to restore the property to its original position which was prevalent on the date of agreement.
(H) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to handover the possession of ‘Visamo - Hotel White Feather’ at Saputara to the petitioners.
(I) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to extend the period of contract for another six months, in view of Covid’19 Global Pandemic, as directed by the Government of India vide notification dated 13.05.2020.”
(J) To pass such other and further order/s as may be just and necessary in the circumstances of the case.”
2. The facts giving rise to this writ application may be summarized as under:
3. The writ applicant No.1 is a partnership firm registered under the Indian Partnership Act, 1932 (for short, “the Act, 1932”), of which the writ applicant No.2 is one of the partners.
4. It appears from the materials on record that the respondent No.2 – Tourism C
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